87 So. 205 (Ala. 1920), 3 Div. 429, Montgomery Light & Water Power Co. v. Thombs

Docket Nº:3 Div. 429
Citation:87 So. 205, 204 Ala. 678
Opinion Judge:BROWN, J. PER CURIAM.
Party Name:MONTGOMERY LIGHT & WATER POWER CO. v. THOMBS.
Attorney:Steiner, Crum & Weil, of Montgomery, for appellant. Hill, Hill, Whiting & Thomas and W.T. Seibels, all of Montgomery, for appellee.
Judge Panel:Anderson, C.J., and Brown and McClellan, JJ., dissent from paragraph 16. Brown and Thomas, JJ., dissent from paragraph 17. ANDERSON, C.J., and McCLELLAN, SAYRE, SOMERVILLE, and GARDNER, JJ., concur. BROWN, J. (dissenting). THOMAS, J., concurs in the foregoing.
Case Date:June 30, 1920
Court:Supreme Court of Alabama

Page 205

87 So. 205 (Ala. 1920)

204 Ala. 678

MONTGOMERY LIGHT & WATER POWER CO.

v.

THOMBS.

3 Div. 429

Supreme Court of Alabama

June 30, 1920

Rehearing Denied Nov. 6, 1920

Addenda, Nov. 15, 1920

Anderson, C.J., and Brown and McClellan, JJ., dissent from paragraph 16.

Gardner and Sayre, JJ., dissent from paragraph 15.

Brown and Thomas, JJ., dissent from paragraph 17.

Appeal from Circuit Court, Montgomery County; W.L. Martin, Judge.

Action by Jessie Boggs Thombs, as administrator, against the Montgomery Light & Water Power Company for damages for the death of her intestate. Judgment for the plaintiff, and defendant appeals. Affirmed on condition that plaintiff enter a remittitur reducing the judgment from $25,000 to $15,000.

If necessary to obviate and remove a dangerous condition, an electric power company has the right and duty to move the wire of an electric light company which was apt to come in contact with the power wire, so that a charge requested by the power company that plaintiff should have sued the light company was properly refused as an invasion of the province of the jury.

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The second count of the complaint, to which demurrers were interposed and overruled, is in the following words:

"Plaintiff, as administratrix of the estate of John A. Thombs, deceased, claims of the defendant the sum of $50,000 as damages for that on, to wit, the 1st day of September, 1918, in the county of Montgomery and state of Alabama, the defendant negligently permitted one of its light wires that was charged with an electric current, dangerous to human life, to come in contact with one of the Montgomery Light & Traction Company's wires that was connected with a wire or fixture in plaintiff's intestate's home, and thereby caused said wire or fixture in the home of plaintiff's intestate to be charged with an electric current dangerous to human life. And plaintiff avers that at said time and place her intestate came in contact with said wire or fixture in his said home, and was killed by said current of electricity, all to plaintiff's damage as such administratrix as aforesaid; hence this suit."

The demurrers take the following points: (8) No facts are alleged in said count to show that the plaintiff's intestate's injuries were the proximate result of any breach of duty or negligence on the part of the defendant; (14) the allegation that the defendant negligently permitted one of its wires to come in contact with the Light & Traction Company's wires, etc., is merely the conclusion of the pleader, as no facts are alleged in support thereof; and (15) no facts are alleged in said count to show that this defendant was under any duty not to permit its said wire or wires to come in contact with the traction company's wires, or the wires that lead into plaintiff's intestate's home.

Count 1 is as follows:

"Plaintiff, as administratrix of the estate of John A. Thombs, deceased, claims of the defendant $50,000 as damages for that she avers that the defendant was on, to wit, September 1, 1918, in the city and county of Montgomery, state of Alabama, engaged in the business of operating an electric light company, and in connection with its said business used a wire which ran along, upon, or in a public street of said city, and which wire was then and there heavily charged with electricity.

"Plaintiff further avers that her said intestate's home then was the said city, and a wire extended into said home and was connected up with electric light fixtures in said home; and plaintiff further avers that the defendant so negligently conducted its said business that by reason thereof and as the proximate result and consequence thereof, on, to wit, said day and date, in said city, county, and state,

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the said electricity from the wire used by the defendant as aforesaid was in said public street communicated, carried, or transmitted to the wire that extended or ran into said intestate's home as aforesaid, and thereby and as the proximate result thereof one of said electric light fixtures was heavily charged with said electricity, and was made dangerous to life, and plaintiff further avers that her said intestate in said home on, to wit, said day and date, touched or came in contact with said fixture while the same was dangerous as aforesaid, and by reason thereof and as the proximate result and consequence thereof he was killed, to her damage as such administratrix as aforesaid; hence this suit."

The following are the charges given at the instance of the defendant:

"(6) Negligence means the doing of an act which a reasonably prudent person would not under the same circumstances have done, or omitting to do what a reasonably prudent person under the same circumstances would have done, and, unless you are reasonably satisfied from the evidence that the defendant in this cause is guilty of negligence under the definition which I have given you, and that its negligence was the proximate cause of the death of plaintiff's intestate, then you should return a verdict in favor of the defendant.

"(7) The burden of proof in this case is upon the plaintiff to reasonably satisfy you from the evidence that the defendant has been guilty of negligence proximately resulting in the death of her intestate, and, unless you are so reasonably satisfied from the evidence in the case, you should return a verdict for the defendant."

The court gave charge 4 for the defendant as follows:

"If after a full and fair consideration of all the evidence in this case any individual juror is not reasonably satisfied that the plaintiff ought to recover, you cannot return a verdict for the plaintiff"

--and made the following explanation:

"Which means, gentlemen, you must all agree on something. If one of you come to a certain conclusion, if one of you is not reasonably satisfied that plaintiff ought to recover, then, of course, plaintiff cannot recover."

Assignment of error 3 is that the court erred in overruling appellant's objection to appellee's question to the witness O'Toole as follows:

"About a year before that time did they have any trouble out there on that corner?"

Assignment 4 is that the court erred in overruling appellant's motion to exclude the answer to the question.

The following charges were refused to the defendant: (1) The general affirmative charge; (2) affirmative charge as to first count; (3) affirmative charge as to second count. The following charges were refused to the defendant:

"(8) If you are reasonably satisfied from the evidence that the defendant's construction and occupancy of its lines at the locality where the accident occurred was prior in point of time to that of the Montgomery Light & Traction Company, and that subsequently the Montgomery Light & Traction Company constructed its wire or wires in dangerous proximity to the wires of the defendant company, then I charge you that there was no duty upon the defendant to do anything with respect to the situation unless it had actual notice or knowledge of the existence of such dangerous condition of the wire.

"(9) I charge you under the law and evidence of this case there was no duty owing by this defendant to the plaintiff's intestate to rectify or correct any dangerous condition of the wires created by the Montgomery Light & Traction Company.

"(10) I charge you under the law and evidence of this case there was no duty owing by this defendant to the plaintiff's intestate to rectify or correct any dangerous condition of the wires created by the Montgomery Light & Traction Company, unless this defendant had actual notice or knowledge of the said dangerous condition.

"(11) I charge you that there was no duty owing by this defendant to the plaintiff's intestate, Mr. Thombs, to inspect its lines for the purpose of finding and correcting any dangerous condition that may have been created thereon by the Montgomery Light & Traction Company."

"(15) The fact, if it be a fact, that you are reasonably satisfied from the evidence in this case that the construction and maintenance of the defendant's wires at the point of the accident were in a good or reasonably safe condition, and that subsequently the Montgomery Light & Traction Company, by subsequently erecting and maintaining their wires in the manner testified to in this cause, thereby created a dangerous condition for plaintiff's intestate, then I charge you that, so far as the plaintiff's intestate was concerned, this defendant owed him no duty to ascertain and correct the said dangerous condition; and, if you believe from the evidence in this case that his death was the proximate result of that dangerous condition so caused by the Montgomery Light & Traction Company, then I charge you that the plaintiff cannot recover, and the verdict should be for the defendant."

"(12) If you are reasonably satisfied from the evidence that the negligence of the Montgomery Light & Traction Company in the construction of its service wires or wire from its pole in the locality of the accident to the Davis house was the approximate cause of the death of the plaintiff's intestate, then the plaintiff is not entitled to recover against the defendant in this case, and in that event you should return a verdict for the defendant."

"(B) I charge you that defendant was under no duty to Mr. Thombs to inspect its wires to discover and correct any dangerous condition created or existing without its negligence."

"(E) I charge you, gentlemen of the jury,

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that the plaintiff should have sued and can now sue the traction company if she be so advised. The suing of the defendant does not prohibit a suit against the traction company."

In his opening argument Mr. Seibels said:

"The people of Montgomery have been...

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